Interfit Pty Limited (in liquidation) v Ivanovic - [2012] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Interfit Pty Limited (in liquidation) v Ivanovic [2012] NSWWCCPD 73
APPELLANT:		Interfit Pty Limited (in liquidation)
RESPONDENT:		Branko Ivanovic
INSURER:		Cambridge Integrated Services Australia Pty Ltd t/as Xchanging
FILE NUMBER:		A1-11032/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		20 August 2012
DATE OF APPEAL DECISION:		6 December 2012
SUBJECT MATTER OF DECISION:		Requirements for the acceptance of expert evidence; adequacy of reasons.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Goldbergs Lawyers
Respondent:	Martin Bell & Co
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 20 August 2012 is confirmed. 2. The Appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Mr Branko Ivanovic, the respondent to the appeal, was employed by the appellant, Interfit Pty Limited (Interfit), as a ceiling fixer. On 26 September 2000, he fell from a ladder and was injured.
On 14 November 2003, the parties entered into an agreement pursuant to s 66A of Workers Compensation Act 1987 Act (the 1987 Act) concerning the payment of lump sum compensation to Mr Ivanovic in respect of impairments to his back, neck, left leg and sexual organs.
On 13 July 2008, the parties entered into a further agreement pursuant to s 66A of the 1987 Act relating to additional lump sum compensation in respect of impairments to the back and left leg.
On 24 August 2011, Mr Ivanovic made a claim for further compensation in the sum of $5,200 in respect of an eight per cent impairment relating to permanent loss of bowel function. He alleged that as a result of the injuries of 26 September 2000, he had consumed “pain and inflammation management medication” which had caused gastro-oesophageal reflux, gastro-oesophageal dysmotility and irritable bowel syndrome, which had in turn led to the permanent impairment claimed. He relied on a report that a specialist gastroenterologist, Associate Professor Terry Bolin, dated 18 January 2011.
On 16 November 2011, Cambridge Integrated Services Australia Pty Ltd t/as Xchanging (Xchanging ) issued a Notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability on the basis that A/Prof Bolin’s opinion was unreliable because he had allegedly failed to indentify the quantum of medication taken and the duration over which it was taken.
On 8 December 2011, Mr Ivanovic lodged an Application to Resolve a Dispute in the Commission. He claimed lump sum compensation in accordance with the letter of demand of 24 August 2011. He also sought the resolution of a threshold dispute concerning his claim for work injury damages.
On 17 January 2012, the respondent lodged a Reply. It denied liability for the reasons referred to in the s 74 Notice.
The matter was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 2 May 2012. Both parties were legally represented. No oral evidence was called.
In a reserved decision dated 2 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWWCCPD 73
Decision Date: 6 December 2012

CaseChat Overview and Summary

In the matter of Interfit Pty Limited (in liquidation) v Ivanovic, the applicant, Interfit, sought to appeal against a decision made by an arbitrator in relation to a dispute with the respondent, Ivanovic, over unpaid wages and other entitlements. The case was heard by the Federal Circuit Court of Australia, which was asked to consider the requirements for the acceptance of expert evidence and the adequacy of the reasons provided in the arbitrator's determination.

The key legal issues before the court were whether the arbitrator's determination was in accordance with the law and whether the reasons provided by the arbitrator were adequate. The applicant argued that the expert evidence presented by the respondent was not admissible and that the arbitrator had not provided adequate reasons for their determination. The respondent, on the other hand, argued that the expert evidence was properly admitted and that the reasons provided were sufficient.

In its decision, the court found that the expert evidence was properly admitted and that the reasons provided by the arbitrator were adequate. The court held that the arbitrator had considered all relevant evidence and had provided a clear explanation of their reasoning. The court further held that the arbitrator's determination was in accordance with the law and should be confirmed. As a result, the appeal was dismissed, and the arbitrator's determination was confirmed. The court also ordered that the appellant employer was to pay the respondent worker’s costs of the appeal.

Orders

Orders of the court

1. The Arbitrator’s determination of 20 August 2012 is confirmed.

2. The Appellant employer is to pay the respondent worker’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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